Senator McCain spoke on the floor and echoed what we all know, politicians on both sides of the aisle are primarily interested in their own winning. This is not new. When I was in high school I wrote my first letter to the NY Times. It was a snarky response to Congress voting itself a pay raise. I also worked on the Hill when I was in college. There was less money in politics then and the media was not as focused on ratings and appealing to a certain base. Nonetheless, the business of Congress remained to get elected.

I admire the Senate Majority Leader’s ability to try to turn an extremely bad hand (most of it of his own making) into something that has an outside chance of passage. It will slightly please the President, whose sole focus seems to be about winning, or at least the appearance of winning, regardless of substance. For those in the House who he, like Obama, threw under the bus for their healthcare plans, it may salvage their need to be the party in Opposition, despite being the Governing Party. It is a nice trick, but it is beyond cynicism.

There are real healthcare issues that Americans face. Obamacare has not existed for years as the Republican Congress stripped a lot of the requisite funding from it, causing a number of insurers to fail (and later sue and win). This will continue on a regulatory basis in the cynical hope that there will be enough pain that the majority in Congress will be overlooked for failing to have a workable plan after 7+ years of griping. The Democrats for their part, while not invited to the dance, have sat on their hands and not established and promoted a plan to actually fix “Obamacare”. They too are playing for winning in 2018, regardless of the impact on their constituents. It is easy to be the Opposition party.

Congress and the President have very low public approval ratings except in their narrow gerrymandered districts. Americans across the spectrum of political interests would probably come together to support a law that would strip House Representatives and Senators (but not their staffs) of Federal health insurance that they receive. As they will likely move on to cut “entitlements”, they should also have their current pensions frozen and then prospectively terminated. Although there are many in Congress who are independently wealthy or whose spouses work in the government, lobby organizations or local business that offer employer group insurance, a message needs to be delivered that they are in the same shoes as their constituents when they change or take away benefits. This is not to discourage reform-but regulatory and fiscal. It is to rationalize it, and to make it less about winning.

In the meantime, I will have to go look for my high school letter to the NY Times. As Yogi Berra would say, it’s Deja Vu all over again.

For those who were and are in selfless service of our country, both here and abroad, in support of liberty; and for the fourth estate that responsibly preserves those freedoms at home- a remembrance on this Memorial Day. May America Be First, always by example.

O beautiful for heroes proved
In liberating strife.
Who more than self their country loved
And mercy more than life!
America! America!
May God thy gold refine
Till all success be nobleness
And every gain divine!

O beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea!”

INFORMATION CORRECT AS OF JANUARY 2017
Number of rocket launches since the start of the space age in 1957:About 5250

Number of satellites these rocket launches have placed into Earth orbit:About 7500

Number of these still in space:About 4300

Number of these still functioning:About 1200

Number of debris objects regularly tracked by the US Space Surveillance Network and maintained in their catalogue:About 23 000

Estimated number of break-ups, explosions and collision events resulting in fragmentation:More than 290

Total mass of all space objects in Earth orbit:About 7500 tonnes

Number of debris objects estimated by statistical models to be in orbit:29 000 objects >10 cm750 000 objects from 1 cm to 10 cm166 million objects from 1 mm to 1 cm

Euroconsult in its report Satellites to be Built & Launched by 2025 estimates that in the period from 2016-2025 there will be 1450 worldwide launches of government and commercial satellites with a mass of 50kg. Added to satellites under 50kg (the micro and nano market), the number of total launches could increase to 9000, a nearly 6 fold increases from the period 2006-2016. This may be an understatement given plans by SpaceX and others (OneWeb) to launch thousands of low orbit satellites to provide internet service at a greater speed (speed of light is 40% faster in space than in fiber) and to rural areas.

Governments presently dominate the market, particularly in Europe, the U.S., Russia, India, China and Japan, but the spread and breadth of launches is accelerating. Most commercial offerings are in low (Low earth orbit- LEO) to mid-orbit (geostationary- GEO) as the focus is on communication and broadcasting. Historically, space debris as a satellite risk exposure has been minimal, but this will be changing. Small satellites kept within 650 kilometers as international guidelines provide usually do not pose a debris issue, as they fall back to earth and burn-up. In higher orbits, this is not the case, and some foreign launches have ignored the guidelines.

NASA believes that there are more than 20,000 pieces of debris larger than a softball orbiting Earth at speeds up to 17,500 mph. It is unlikely those objects will enter Earth’s atmosphere, but the odds that one will strike and damage functioning satellites and other spacecraft are increasing, according to the National Research Council. With increased orbital density, there will be increased risk of satellite damage from debris, that might even cascade.

Because there is no cost-effective way to remove debris, researchers want to better track objects to avoid potential collisions and are beginning to try to track debris and debris content to better design satellites.

Like the Law of the Sea, international space law is weak on enforcement relying on government channels. It also does not address commercial disruption, which given communication commerce from space is problematic. Space law was principally for territory, not for space debris. Industry, rather than governments, may prove more effective in resolving damage to the satellite, but not in legally resolving temporal pollution. Technological advances may be more fruitful if costs can be kept low.

Article II, Section 3 of the U.S. Constitution includes the so-called “faithful execution clause”. It provides that the President of the United States “shall take Care that the Laws be faithfully executed, …”. It is a Constitutional clause that has had minimal interpretation, and then mostly as a check on Presidential power usurping or ignoring constitutional laws passed by Congress.

The United States is a nation of laws, but initially the judicial branch was the weakest of the three branches. The scope of “Executive Power” has been unresolved since the founding of our Republic. The Vesting Clause of Article II, Section 1 of the Constitution arguably grants the President inherent “executive” powers that are not enumerated in the Constitution. Use of executive orders by the Presidents have been wide ranging and political. President Lincoln’s Emancipation Proclamation was an Executive order.

There is a long history of independent Executive branch authority in matters of foreign affairs beyond the enumerated powers shared with Congress under the Constitution or implied through the “necessary and proper clause” with respect to domestic authority. The Supreme Court reviewed some of this history in Justice Sutherland’s opinion in the 1936 case United States v. Curtiss-Wright Export Corp. (See 299 U.S. 304, 318-19). In that case under a Joint Resolution of Congress the President could order an arms embargo on exports from the U.S. to states involved in certain armed conflicts. The Bush administration used such inherent authority to detain alleged supporters of international terrorism (and for warrantless searches in the U.S. for foreign intelligence purposes). The Court never addressed the latter in the context of judicial interpretation of such executive orders under international law to which the U.S. is subject.

Presidential authority even in time of war has not gone unchecked. President Truman’s attempt to seize steel mills to avert a labor strike that would have interfered with the Korean War effort was rebuffed by the Supreme Court in Youngstown Sheet and Tube Co. v. Sawyer (343 U.S. 539) (1952).

The leeway granted the President to act unilaterally under the Faithful Execution clause depends on whether the President’s action or omission is ministerial in nature or discretionary. The clause has been interpreted most often in the context of ministerial acts under statutory law. President Obama’s Executive Order to not enforce the removal provisions of the Immigration and Nationality Act against certain individuals in the U.S. illegally, was overturned by the Court. Executive orders made by the President under executive discretion over foreign affairs have tended to invite less judicial review. The judicial branch tends to avoid political questions particularly if related to foreign affairs, in times of real or perceived crisis.

The President’s recent Executive Order temporarily banning immigration from certain predominantly Muslim countries that were already subject to enhanced individual immigration review, could raise an expansive interpretation of the Faithful Execution clause by seeking removal of judicial scrutiny based on the President’s inherent residual authority over foreign affairs. Such unilateral Presidential power would not be limited to immigration issues. This Executive Order was unusual because Presidents revert to such powers when Congress is averse to them. Although it may be considered a mistake of a new Administration both in terms of execution and policy, it likely will be pursued either as a distraction or to expand Presidential authority where Congress has for generations ceded the field.

“The drafting history of the Take Care Clause at the Philadelphia Convention supports the natural reading that the text imposes a duty and a constraint. James Wilson, later an Associate Justice of the Supreme Court, introduced a draft dealing with the Executive that read in part: “It shall be his duty to provide for the due & faithful exec—of the laws.”121 The Committee of Detail altered this draft to read: “he shall take care that the laws of the United States be duly and faithfully executed.”122 The Committee on Style simplified that version, drafting the final form of the Clause: “he shall take care that the laws be faithfully executed.”123 Years after the Convention, Wilson explained that the Clause meant that the President has “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which [are] established.” (see https://www.law.yale.edu/system/files/area/conference/ilroundtable/ILR13_CDDavidDelahuntyJohnYoo.pdf )

This indication of legislative history undercuts any use of Executive Order to “make” law under the authority of the Faithful Execution clause. Constitutional construction, by activists and non-activists alike ebbs and flows. Should this this recent challenge to President Trump’s Executive Order get on to the Supreme Court’s docket when the Court has 9 members it could present an interesting case. Given the timing, it is probably unlikely. Unless there is a conflict between the Circuits, the 9th Circuit’s ruling will likely go unchallenged as it would be upheld if the Supreme Court splits.

From a political and practical standpoint, it is unclear to me why this Executive Order has not been rescinded by the Trump Administration and then rewritten. Obstinacy in the face of practicality is not a virtue regardless of political persuasion.

The most recent Presidential election has left me adrift. I did not like either choice, but voted for one. The tone was embarrassing, although probably no worse than at the start of our republic. Every institution was denigrated. The broadcast media on the whole and print media, to a lesser extent, did not inform but earned revenue from railing against candidates they purportedly were against. Most are doing postmortem justifying their ignorance and bias without trying to reach out to the segments of America that these outlets ignore. The FBI lost its way. If true, foreign governments, directly or indirectly, interfering in our electoral process cannot go unanswered.

I feel no attachment to government officials from whom I receive mail, email, or phone calls once a year around elections and then ignore me the rest of the year. I have no access and they have no use for me because most districts are non-competitive design. We like competition in business, but don’t get it in government.

I look at the pool of future candidates and see none that are inspiring. The broken system of saying “no” to the other side does not encourage anyone of substance. Too much money involved to run and too much personal dirt to have to live with. Who would want it.

I think about taking my son to the U.S. Senate when he was a little boy. He saw Orrin Hatch and the late Ted Kennedy vigorously debate a healthcare matter. They seemed to dislike each other. I told him to watch them both after the debate. They had different viewpoints, but were best friends. Same with Justices Ginsburg and Scalia. I can’t find “statesmen” today.

I watch the protests over the President-elect. I can understand the feeling given how offensive he was. However, those now protesting rightly complained when Mr. Trump refused to affirmatively state that he would accept the result if he lost. Now they do the same.

We are in some respects getting the candidates and government officials we deserve. We don’t listen and empathize. The problem is us. Let’s right the ship that is America by celebrating and helping each other.

I have been doing some volunteer legal work with some local bar associations helping out on insurance questions for those impacted by Hurricane Sandy. I recently attended an information session about FEMA and insurance that was offered by one of these Bar Associations (I may be taking a leadership role re insurance for one of them). While my legal practice involves insurance it generally is not at the ground level homeowners disaster level. I understand insurance and construction, flood vs. wind and time element issues. These often entail considerable time to resolve. What I do not understand is how poor the information collection, dissemination and payment processes are for natural and man-made (terrorism) disasters. There is the US government’s DHS’ portal disasterassistance.gov which provides some assistance. It is however hugely incomplete, which makes the whole process needlessly time consuming and counter-productive.

FEMA is a payer of last resort; but the homeowner files first with it, and separately with their insurer if they have one. If they have flood coverage that would file that with either FEMA or their insurer, depending on how it was purchased (why flood and wind are handled separately is another travesty I will leave to another time). If the claimant might receive a grant or want a loan, they will file with the SBA or any State or local agency that is offering such. D-SNAP food benefits would essentially be automatic for those who were already in the SNAP program through the USDA and local administration. A separate filing would otherwise need to be made.

For the New York region, storms on the level of Sandy are infrequent. I can accept that there might not be the level of coordination that exists along the Gulf or Florida, or California for earthquakes. In fact, there is no universal reporting form and system for natural or man-made disasters that would independent of the claimant link to all affected government agencies, insurers and NGOs and in real time permit transparent multi-organizational management of the claim by other agencies, insurers and NGOs. If there were, the process could be faster, as the claimant would only need to file once; the agencies, insurers, NGOs would see what each other have decided to do in real time, and could make a unified decision about relief and award. This would reduce fraud and avert subsequent recoupment and reconsiderations. This is basic project management for those in the business community. It may be more complicated given different IT systems, but I have yet to find that this is even on any organization’s radar. I looked at FEMA’s plans through 2014, and while they intend to expand their community outreach (which is good), no universal disaster reporting and payment portal is planned.It is as if we were still in the 19th Century.

I suppose I am naive and I should just accept the rationale that disaster relief takes time. The bureaucracies may prefer it this way. I am not that accepting however and intend to see what can be done to modernize this process.

The New York Times recently published a list of CEO compensation for some US public companies. While it did not encompass all public companies, it did reflect that almost all of these CEOs earned more than $5 million in total compensation, with a substantial number earning this amount in salary.

I posted recently “Dimon In the Rough”, which raised the issue of limiting CEO annualized compensation to a maximum of $5 million if the CEO is a manager and not a controlling shareholder. The rationale was that Jamie Dimon purportedly did not know enough about JP Morgan Chase’s risk management and investments to avoid more than a $2 billion loss on derivative transactions. My post was not to berate Mr. Dimon, but to recognize that no CEO of a large corporation can know, or be responsible for every loss, including large losses. Similarly, no CEO is responsible for most outsized or even small corporate gains in equity or other measures for bonus and stock compensation tied to their company’s large capital base. The reality is that CEO’s are managers who accumulate hopefully expert advice from a variety of people and sources and make a decision. Occasionally, the positive gain may be attributable to their singular action (or inaction), but this is the exception. If you had each CEO do a daily timesheet it would be clear that the financial rewards do not match the CEO’s singular contributions.

CEOs do not do timesheets. If the corporation hires outside counsel in a case or transaction it generally expects timesheets which can be audited. The corporation does not want to waste corporate assets by paying outside experts millions of dollars, but it will pay a CEO millions merely upon review by the Board’s compensation committee. These committee’s benchmark what other CEOs get paid, so there is little likelihood of a reduction in compensation, even when “say on pay” is adopted.

Corporations will also outsource middle management or lower tiered workers as technology is used to create more efficiencies. An algorithm may be used to develop a more efficient process that can reduce the number of workers needed to complete a task. Employees are often asked to describe how they do the tasks that are their job requires so that software can be created to either improve how they do their job or to eliminate it. Not all reflects a linear logical process but entails intuition based upon years of experience, knowledge of people and markets. If CEOs were asked to similarly describe all that they do and have it memorialized daily in descriptive timesheets, could much of what they do be replicated through software? Could there be an algorithm for the CEO job that would improve decision making and better reflect financial worth to a corporation and its shareholders? Would they be more sensitive to the fears of their employees?

The reported backtracking that Joe Ricketts did today in connection with a racially tinge proposed ad by his SuperPac against President Obama could be a good thing.

The good thing is that he is one of two Ricketts on the Board of TD Ameritrade. It is a Board of all Caucasian people save for one member of Asian descent who works for the TD Financial Group. There is also one woman member. No African-Americans, no Hispanics. On a day when it was revealed that Caucasians will become a minority in the U.S. as more non-Caucasian babies are being born in the U.S., TD Financial Group needs to recognize that it needs to reflect this diversity on its Board.

I would hope that Messrs. Ricketts’ views do not reflect that of the Canadian TD Bank Financial Group. Even if they do, it is just not good business to have the Ricketts as poster boys for TD. TD needs to find an exit strategy for them.

Perhaps to incent TD, at least non-Caucasian investors through TD Ameritrade should move their business elsewhere. Mr. Ricketts is a billionaire and can continue to fund PAC’s that support his political views, so he will likely be unaffected. Nonetheless, TD should recognize that Board members whose political views, of any persuasion, are lightening rods, best come off the Board and be disassociated with their business.